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In Canada, the offence of failure or refusal to comply with demand (drugs)9265 arises when a person knowingly refuses, without a reasonable excuse, to provide a legally required breath, blood, urine, or oral fluid sample to police. This charge is created by section 320.15(1) of the Criminal Code and is classified as a hybrid offence, meaning it can be prosecuted either summarily or by indictment, depending on the seriousness of the circumstances. For anyone researching refusal drug test Canada, this offence is central: it is designed to support Canada’s impaired driving regime by ensuring that suspected drug-impaired drivers cannot avoid investigation simply by refusing to cooperate.
The Legal Definition
Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.
This definition comes from section 320.15(1) of the Criminal Code of Canada. In plain language, the law makes it a crime to refuse or fail to provide a sample (such as breath, blood, urine, or oral fluid) when police have lawfully demanded it under the impaired driving provisions. The person must know that a demand has been made, and the refusal must be without reasonable excuse.
Sections 320.27 and 320.28 are the provisions that authorize officers to demand screening or evidentiary samples where there are grounds to suspect or believe impairment by alcohol or drugs, or to investigate a drug-impaired driving offence. If those underlying demands are valid, the person is legally required to comply. The key elements the Crown must prove include: (1) a lawful demand under section 320.27 or 320.28; (2) that the accused knew about the demand; and (3) that the accused failed or refused to comply and did not have a reasonable excuse.
Penalties & Sentencing Framework
- Mandatory minimum penalty: None.
- Maximum on summary conviction: Fine up to $5,000, imprisonment up to 2 years less a day, or both.
- Maximum on indictment: Imprisonment up to 10 years.
- Offence type: Hybrid (prosecutable summarily or by indictment).
Although there is no mandatory minimum penalty specified in section 320.15(1), the maximums are significant, especially on indictment where the maximum can reach up to 10 years in prison. This reflects Parliament’s intent to treat refusals as seriously as, and sometimes more seriously than, impaired driving itself. In the context of refusal drug test Canada law, courts often emphasize that allowing drivers to avoid testing would undermine the entire impaired driving enforcement scheme.
Because this is a hybrid offence, the Crown chooses whether to proceed by summary conviction or by indictment. Summary proceedings are typically reserved for less serious cases – for example, where there is no collision, no injuries, and the driver has little or no prior record. In those situations, the range of sentence is usually lower, with the statutory maximum of a $5,000 fine and/or up to 2 years less a day in jail. Indictable proceedings are used for more serious circumstances – such as where the refusal occurs after a serious collision, injuries, or where the accused has a significant history of impaired-driving-related offences. On indictment, the sentencing judge has access to the much higher 10-year maximum.
Sentencing judges consider standard criminal sentencing principles: denunciation, deterrence, proportionality, and the offender’s moral blameworthiness. Factors that may increase the penalty include: prior impaired or refusal convictions, evidence of significant impairment, endangerment of others (e.g., high-speed driving or a collision), and lack of remorse. Mitigating factors may include a previously clean record, early guilty plea, genuine misunderstanding of the demand, or specific personal circumstances. Even in the absence of a mandatory minimum, a conviction often carries additional real-world consequences, including a criminal record, driving prohibitions under provincial legislation, higher insurance costs, and potential employment or travel impacts.
Common Defenses
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Reasonable excuse for non-compliance
The phrase “without reasonable excuse” is a critical component of section 320.15(1). A person is not guilty if they had a reasonable excuse for failing or refusing to provide the required sample. In practice, this often involves situations where the accused was physically unable to comply. Examples can include serious respiratory conditions that prevent blowing into a breathalyzer, injuries that make it impossible to provide a blood or urine sample, or medical emergencies such as a panic attack or heart issue occurring at the time of the demand. The excuse must be more than mere inconvenience or nervousness; courts typically require credible evidence (often medical evidence) to show that compliance was not realistically possible. In the drugs context, if an accused can demonstrate that they tried in good faith to provide an oral fluid or blood sample but were unable for reasons beyond their control, this may amount to a reasonable excuse and defeat the charge.
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Invalid demand
Another key defence is that the police demand itself was invalid. Section 320.15(1) only applies where there is a valid demand made under section 320.27 or 320.28. Those sections impose requirements on police, including minimum grounds to suspect or believe impairment, and, in many cases, the obligation to make the demand “as soon as practicable”. If officers lacked the necessary reasonable grounds (for example, no observable signs of impairment, no driving evidence, or no basis to suspect drug use), or if they unreasonably delayed making the demand, a court may find that the demand was not authorized by law. In such cases, failing or refusing to comply cannot legally constitute the offence, because the starting point – a valid demand – was missing. Defence counsel will closely scrutinize the officer’s observations, timing, and the wording used when making the demand, often using cross-examination to show that the legal thresholds in sections 320.27 and 320.28 were not met.
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Charter rights violations
Since these investigations typically involve roadside stops, detention, and bodily samples, Charter of Rights and Freedoms issues frequently arise. Three Charter sections are commonly engaged: section 8 (right to be secure against unreasonable search or seizure), section 9 (right not to be arbitrarily detained or imprisoned), and section 10(b) (right to retain and instruct counsel without delay and to be informed of that right). If police unlawfully stop a vehicle (no lawful authority to stop), the detention may breach section 9. If officers demand and take a bodily sample without sufficient legal grounds, or in an overly intrusive manner, section 8 can be violated. If the accused is not promptly informed of their right to counsel or is prevented from meaningfully exercising that right before making critical decisions, section 10(b) may be breached. When such violations are proven, the defence can apply under section 24(2) of the Charter to exclude the evidence, such as statements, observations, or test-related materials. In some cases, if the exclusion weakens the Crown’s case enough, or if the entire investigation is tainted by serious Charter breaches, the refusal charge may be dismissed.
Real-World Example
Imagine being pulled over at a roadside check. The officer observes signs of impairment – perhaps your eyes are red, your speech is slow, and there is an odour of cannabis in the vehicle. Based on these observations, the officer forms a reasonable suspicion of drug impairment and, under section 320.27, demands that you provide an oral fluid (saliva) sample using an approved screening device. You understand the demand but, believing that refusing might avoid trouble, you decline to provide the sample and repeatedly turn your head away from the device. You do not have any medical condition preventing you from complying. In this situation, you have likely committed the offence of failure or refusal to comply with demand (drugs) under section 320.15(1). The officer can arrest you, and the Crown may choose to prosecute by summary conviction or indictment depending on factors such as your driving pattern, whether there was a collision, and your prior record. The court will assess whether the initial demand was valid and whether you had any reasonable excuse. If the demand met the statutory requirements and no valid excuse exists, a conviction is likely.
Record Suspensions (Pardons)
A conviction for failure or refusal to comply with a drug-related demand results in a permanent entry on your criminal record unless and until you obtain a record suspension (formerly called a pardon). Because this is a hybrid offence, the waiting period before you can apply for a record suspension depends on how the Crown proceeded. If you were convicted by summary conviction, you are generally eligible to apply for a record suspension 5 years after completing your entire sentence, including any probation, fines, or driving prohibitions. If you were convicted by indictment, the waiting period increases to 10 years after full completion of the sentence. A record suspension does not erase the conviction, but it sets it aside in most criminal record checks, which can be crucial for employment, housing, volunteering, and international travel. However, serious driving histories and provincial licensing issues may still be considered separately by driver licensing authorities and border officials, even where a record suspension has been granted.
Related Violations
- Impaired Driving
- Driving Under the Influence of Drugs
- Failure to Provide a Breath Sample
